Why the Obama Administration is Wrong About Legislative Prayer
August 9, 2013
On Thursday, the Obama administration filed an amicus brief in the upcoming Supreme Court case Town of Greece v. Galloway, which is focused on whether the practice of starting town council meetings in Greece, New York (and elsewhere) with a prayer or invocation violates the Establishment Clause of the First Amendment to the United States Constitution.
Unfortunately, the Obama administration's brief employs spotty reasoning to argue that legislative prayers are and should remain legal. The brief is an enormous disappointment for those who value the principle of separation of church and state.
In this post I do not intend to discuss details of the case Town of Greece v. Galloway. For that, you can read this article by Simon Brown of Americans United for Separation of Church and State, the organization that is challenging the legislative prayer practice in Greece. Here I will limit myself to a couple quick thoughts on several arguments contained within the 30-page brief.
Broadly speaking, the administration argues that legislative prayers are legal for three main reasons.
First, the administration argues that such activities have been in place since the founding of this country, and have been deemed legal by the courts for that reason. For instance;
"In Marsh v. Chambers (1983) … this court held that a state legislature’s practice of employing a chaplain to deliver prayers at the beginning of its legislative sessions does not violate the Establishment Clause. The Court’s decision relied primarily on the history of legislative prayer in this country which has existed without pause since the Continental Congress and was adopted as the official practice of the United States House of Representatives and Senate at the same time those bodies were drafting and approving the First Amendment." (link added).
Yet there is no reason why tradition by itself — either in practice or opinion — should justify a governmental practice. Many governmental practices were popular at the founding of this country. Some of them were good; some were bad. Why should we be forced to keep any of them simply because they originate at our founding?
Second, the administration argues, in line with several court cases, that government-backed legislative prayers and other religious activities achieve a secular purpose. Citing the majority opinion in the Supreme Court case Elk Grove Unified School District v. Newdow, the brief states:
"Such prayers are permissible notwithstanding their sectarian content because they 'serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions.'"
Or, as the brief later reads (again in reference to Marsh):
"The historical purpose of providing such an opportunity is not to provide a forum for private prayer; it is to solemnize the body's proceedings and to seek divine guidance for the body's deliberations."
The question here should be obvious: how can the act of solemnizing a government activity have a secular purpose if the solemnization is actually a religious appeal for assistance in the activity?
Third, the brief argues that legislative prayer is legal just as long as "it does not proselytize or advance any one, or disparage any other, faith or belief."
It is worth noting that the overwhelming majority of religious leaders who provided invocations in the Town of Greece were sectarian Christians. This is why the U.S. Court of Appeals for the 2nd Circuit previously held that "an objective, reasonable observer would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." While the town might not be explicitly pushing Christianity, it is certainly giving the appearance that Christianity is the preferred town religion (this is the difference between "in itself" and "in effect").
To the Obama administration, relying on Marsh, this does not matter. A government body featuring mainly Christian sectarian prayers would be within its legal bounds because such individual references — even if on government property and sponsored by the government — do not directly tie the government to a religious position. What does matter to the Obama administration, via Marsh, is whether said leaders proselytized or were expressly critical of other faiths or beliefs.
However, to have a prayer practice in which one particular religious belief is repeatedly emphasized does effectively disparage other beliefs. To say that one God exists is, in effect, to say that another one does not. Furthermore, the Obama administration standard effectively ignores the existence of atheists and agnostics, who would be disparaged by most, if not all, religious invocations.
Of course, the government would be better off not being involved at all with the messy business of government-sponsored prayer. There would be no need for line-drawing or determining what counts as proselytization if the government left prayer to the churches, temples, and mosques.
The Obama administration argues in its brief for what is called the "nonpreferentialist" approach to separation of church and state: that the government can support religion and religious views as long as it does so with some qualifications. This approach, as has been detailed, is fraught with practical problems.
The better approach to separation of church and state is "neutrality": that the government should remain neutral on matters of religious belief, neither supporting nor hindering religious or non-religious beliefs. This leaves aside the possibility of any confusion regarding the government's official position on religion, and whether or not prayers and invocations rise to the level of violation.
Taking the neutrality approach to legislative prayer, there are three alternatives to the current situation:
1) Prayers and invocations can be offered, but all religious and non-religious backgrounds must be treated fairly and represented equally.
2) There ought to be a general moment of silence before the start of a legislative session, allowing each person to reflect as he or she wishes.
3) There should be no prayers or invocations; lawmakers can pray in private before legislative sessions.
The most reasonable options given the current social and political landscape in the U.S. are probably the second and third options. There are serious practical issues with the first option. Many legislative bodies are dominated by religious sects that will not allow other religious or non-religious communities to participate in legislative offerings. Furthermore, as is the case in Greece, not every town or city has a diversity of religious and non-religious communities, so equality becomes a stress on the government. Interestingly enough, the third option was precisely how the Town of Greece handled things before 1999, when it started with prayers. Nobody complained until prayers began.
Allowing legislative prayers creates a host of church-state and practical concerns. We would all better off if government stuck to government business, and left the business of promoting religion to religious leaders in society.